5 Ways Employers Make Plaintiffs' Lawyers Very, Very Happy

Posted by Robin E. Shea on March 25, 2011

John Gallagher, a plaintiffs' lawyer, had a good posting last week on TLNT entitled "Can an Employee Be Terminated for Simply Surfing the Internet?"

The point of the article was that, although this seems to be a legitimate ground for termination on its face, it really isn't because everybody surfs the internet at work. Therefore, terminations for this reason make John very happy because he can argue that his client was singled out for a discriminatory or retaliatorysmiling lawyers.jpg reason. 

I have to admit that I've never heard of a real-life employer who terminated an employee simply for surfing the internet. In my experience, what they get terminated for is looking at porn on the internet, or gambling on the internet, or doing illegal downloads on the internet -- in other words, they are engaged in some type of "aggravated" internet misconduct that not everyone else does.

Be that as it may. John's post got me thinking about the things that employers do that bring joy to the hearts of plaintiffs' attorneys. I'm going to avoid the blatantly obvious ones, like "telling your subordinate to sleep with you or be fired," because this is a blog for grown-ups. Here are five mistakes that even good employers sometimes make:

5. Having "zero tolerance" for anything. Since I'm going in no particular order, I might as well start by riffing on John's post. You have a "zero-tolerance" rule against internet surfing at work. What, are you kidding? Even the CEO surfs the internet to check his stock prices or to see whether the weather will allow him to take his yacht out this weekend at Martha's Vineyard. A more prudent policy would be to ban excessive, immoral, or illegal use of the internet at work. "Zero tolerance" policies always result in injustices, which in turn result in lawsuits and big jury verdicts or, at least, humiliating news stories. (Remember those little kindergarten boys who got suspended or even expelled for "sexual harassment" when they kissed little girls? Do you want to be the butt of everyone's jokes like those schools were?)

One might say that I have zero tolerance for zero tolerance policies. Te-he.

4. Telling an employee you're "eliminating her job" when you're really firing her. I blogged about this a couple of weeks ago. First, it's wrong because it's dishonest and cowardly. Although you don't have to give her every gory detail about why she doesn't have a job any more, you owe her at least a brief explanation that is true. But even if you don't care about doing the right thing (and I know you do), you should care because plaintiff's lawyers will be all over you if you lie. Once you get caught in a lie like this, the door is open for the plaintiff's attorney to claim that your real motive was an illegal one . . . even if the termination was perfectly legitimate and you lied only to avoid hurting her feelings.

PS - It's ok to call a firing a "job elimination" if you and the employee agree in writing that this is what you are both going to call it. But you still need to give her the true reason.

3. Assuming you're complying with the wage and hour laws because you pay your folks just like everyone else, and you've done it this way for years. Noooooooooooo . . . First, the law in this area is so complex that the chances are very good that your peers are violating it. That means you're in trouble if you're just doing whatever they do. Second, the chances are even better that whatever you've been doing "for years" is at least partly wrong. It's no news that class and collective action litigation under state wage and hour laws and the Fair Labor Standards Act has been smokin' hot.

It's definitely a good idea to have a wage and hour audit so that you can fix any mistakes (and, believe me, there will be mistakes) before you become the target of a lawsuit or government investigation.

And, by the way, your chances of being targeted have increased dramatically now that the American Bar Association and the U.S. Department of Labor have formed a diabolical strategic alliance in which the ABA finds plaintiffs' lawyers who will take on the wage-hour cases that the DOL doesn't want to pursue.

2. Engaging in blatant reverse discrimination. Most employers know that "regular" discrimination is illegal and wrong, and they work very hard to avoid it. But what about the opposite? Not nearly as good, because many employers don't even know this is against the law. In fact, many believe they are required to sometimes discriminate against whites and males to satisfy their affirmative action obligations.

Admittedly, the law on reverse discrimination is confusing. The current Supreme Court standard in Ricci is convoluted and difficult to apply. That said, unless your company is under a consent decree to correct past discrimination, your best "legal" bet is actually to choose the most qualified person for the job (or terminate the least qualified), regardless of race, sex, national origin, color, religion, age, disability, etc. Who'da thought?

1. Er, um, like, letting your training slip through the cracks. Foregoing training in areas like harassment or discrimination has never been a good idea, but with the Supreme Court's recent "cat's paw" decision, it just got worse. Now employers can be liable for employment decisions that were influenced by a lower-level manager with a discriminatory motive. This decision makes it essential that all levels of management understand their legal obligations.

Make sure your "paws" know the laws.

These are my five -- you probably have some of your own. Please add to my list! 

What's smart and what's legal don't always match

Posted by Robin E. Shea on March 23, 2011

It's legal for me, an adult, to live on a diet of candy bars and milkshakes, but probably not  prudent. (Sounds kinda tasty, though.)

Similarly, in the employment world, what we can get away with is not necessarily what we ought to do.

Jewell Lim Esposito, at our sister blog, Employee Benefits Unplugged, reports the Supreme Court's refusal to review a decision from the U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) holding that an HR manager's complaint about possible violations of the Employee Retirement Income Security Act were not protected.

Legalities aside, Jewell concludes by questioning the wisdom of firing an HR manager for a reason like that. I have to agree -- to me, this is the HR equivalent of the candy-bars-and-milkshakes diet. 

Even though this type of firing apparently doesn't violate ERISA, it's probably still illegal under some other theory. How long do you think it would take for a good plaintiff's lawyer to come up with a claim based on these allegations? How about a wrongful discharge/public policy claim based on her internal complaints of misrepresentation? (There. That took me less than five seconds.)

Conversely, Suzanne Lucas at Evil HR Lady has a very sensible post explaining why anti-bullying laws are a bad idea. Yes, bullying is bad, she says, but not everything bad ought to be illegal. She provides a number of reasons why anti-bullying legislation will make it nearly impossible to manage a workplace, and she's taking some heat about it from her commenters. If we want to eat candy bars and milkshakes all the time . . . well, by golly, it's a free country.

Charity begins at home . . . and ought to stay there most of the time

Posted by Robin E. Shea on March 18, 2011

The Wall Street Journal had a good article this week about Girl Scout cookie sales at the workplace and how much charitable solicitation (if any) should go on at work.

Donation Box.jpgBefore I say another word, let me make one thing perfectly clear: I am 100 percent pro-charity. Those of us who are fortunate enough to have incomes ought to be as generous as possible in supporting our communities and those who are in need. I also think it's admirable that employers want to be good corporate citizens.

I have no problem with individual co-workers helping their kids sell whatever overpriced product they have to sell to keep their schools solvent (wrapping paper, pizza dough, whatever), or with putting their kids' Girl Scout cookie order forms in the break room. I had school-age kids once myself, and I was always grateful to get some help from my co-workers so that my kids could meet their various sales quotas. Now that my kids are grown, I am happy to return the favor by purchasing from the next generation. (Plus, that school wrapping paper totally rules, man.)

What I do think employers should be careful about is other charitable or political solicitations, and especially those made by persons in authority. The reason is simple -- just because you support a given cause doesn't mean that your employees do, and because you're the boss they may feel pressure to do your bidding anyway. Here are four reasons I would be cautious about soliciting for charities at work:

1. They gave at the office. This is an expression. My point is that you don't know what your employees do with their salaries. Maybe they waste it all on booze and cigarettes and potato chips, Manolo shoes, and the Playboy Channel. In which case it might be good if they put it to better use. But it's more likely that they are already using their hard-earned money to support their children's schools, contribute to their places of worship, help the homeless man on the street corner who Will Work for Food, and pay for their elderly mother's nursing home care. Not to mention making house payments in a bad market, paying inflated prices for vegetables and gasoline and home heating oil, and paying off their own student loans while simultaneously trying to scrape together enough to send their kids to college in a few years. If the latter is the case, they may not appreciate being made to feel that they could jeopardize their standing at work (which pays for all these things) if they don't squeeze out a little more blood to support their boss's favorite charity.

2. Your cause may violate their religious beliefs. Even if your cause is not explicitly "religious" in nature, it may still take positions that violate the religious beliefs of some of your employees. And even if you are sophisticated enough to know about Title VII's religious accommodation requirement and allow employees with sincere religious objections to "opt out," it can put them in an awkward position at work and make them feel that they are not perceived as "team players."

3. If it's a political cause, you really ought to know better. This may be an apocryphal story, but it's so good (bad) I can't resist using it. I was told that an employer in the 1990's "encouraged" all of its employees at a manufacturing facility in the United States to write letters to Congress encouraging the enactment of the North American Free Trade Agreement ("NAFTA"). Many of the employees did not support the NAFTA because, like Ross Perot, they were afraid that it would result in their jobs' being sent out of the United States. On the other hand, they were uncomfortable saying no to their employer because they were afraid they'd endanger their jobs for that reason. The facility at which this allegedly occurred is now closed, and as far as I know the work performed there is now being done somewhere south of the border.

My workplace has a vast diversity of political beliefs, and I suspect yours does, as well. I would never assume that my co-workers shared my beliefs on anything. There's a reason that it's considered good manners to keep our political views to ourselves except for discussions with our family and close friends, and people who we know share our views. And everyone else in the world via the internet, of course.

4.  If you allow solicitations for charity and politics, you may also have to allow unions to solicit. Although the law allows limited charitable exceptions to a no-solicitation rule (such as an annual United Way campaign), you generally cannot make too many exceptions or you'll have to allow unions to do it, too. Something to think about. 

OK, OK, you may say, but what can we do to be a "nice corporate guy or gal" without making our employees feel threatened? Here are a few suggestions:

*If you solicit for a charitable organization, be very clear in all communications that you are not trying to pressure anyone and are just letting them know about the opportunity "as information." It's even nice to acknowledge that you realize they may already have financial/charitable obligations that preclude them from helping your cause.

*I hope this one goes without saying, but just in case -- if someone refrains from supporting your organization, LET IT GO. Don't "keep score," and don't assume they're just a cheapskate. If the objection is based on religious beliefs and you hold that against the employee, you may even be violating the law.

*If you are helping a political candidate or a political cause, again make it clear that you are letting people know about the opportunity but that there is no "expectation" whatsoever. One of the partners in my office regularly brings candidates for office around to "meet and greet." He's let us know more than once (and in writing!) that he is not necessarily endorsing these individuals and is not trying to pressure anyone to even vote for them, much less donate to their campaigns. Although the partner's own views are known, he has taken exactly the right approach and as far as I know has not caused any discomfort or hard feelings. 

(One final caution: Be aware that even if you take these precautions, my Point No. 4 about union solicitations is probably still going to apply.)

"Notorious Nine" mistakes by employers in dealing with the EEOC

Posted by Robin E. Shea on March 11, 2011

Everybody on the employer side likes to pick on the Equal Employment Opportunity Commission, and the temptation is even greater now that its chair has taken such an aggressive stance on issues like pre-employment credit and background checks. However, employers occasionally shoot themselves in the foot (feet?) with the agency by making mistakes that only compound their problems. If you can avoid making these nine mistakes, chances are good that you (and your company) will be on the list of employers to whom the EEOC gives the benefit of the doubt – a very good place to beNine Ball.jpg.

No. 9. They don't communicate. Many employers and their attorneys fail to stay in touch with the EEOC while an investigation is taking place. Yes, it is true that the Commission is the guilty party at least as often as the employer. But whether fair or unfair, the employers are the ones under investigation and therefore bear the practical burden of showing that they acted properly. Proactive communication with the EEOC investigator builds credibility for the company and for the attorney who represents it.

No. 8. They underestimate. Many employers and their counsel underestimate the competence and professionalism of the EEOC. Don’t laugh! They assume that the EEOC will not give the employer a fair shake, or that the investigator is not smart enough to identify the relevant issues in a charge. In my experience, this is unfair to most EEOC investigators -- although they may have a pro-employee bias (just as most of us have a pro-company bias), most do want to find the truth and be fair to both the employer and the charging party.

No. 7. They don't expect to litigate. This is closely related to No. 8. Although litigation (rather than a dismissal and notice of rights) is still the exception, the EEOC has been known to go to court – especially when class relief is possible (as with the aforementioned background and credit checks), when religious discrimination allegations are involved (because many people with deeply-held religious beliefs do not believe in filing suit on their own behalf), or when one of the EEOC's favored causes is at issue (currently, disability/genetic discrimination, disparate impact discrimination, and the ever-popular retaliation). Since President Obama was elected, the agency has been hiring litigators like there's no tomorrow, which can mean only one thing. (If you don't believe me, scroll through the agency's recent press releases and see how many lawsuits they've filed against employers since Jacqueline A. Berrien became the chair.) And I can tell you from my own experience that the EEOC is generally a pretty hard-working and effective adversary.

No. 6. They retaliate. Hard to believe that anyone is still doing this – in this day and age! – but a few bad apples do continue to retaliate against employees for engaging in activity protected by the anti-discrimination laws. There are two broad categories of activity that are legally protected: (1) participation and (2) opposition. "Participation" includes filing a charge, testifying against the company, and similar activity. "Opposition" includes activity that does not involve a formal process, such as making an internal complaint about discrimination against oneself or co-workers. It is important to remember that retaliation can exist regardless of the strength of the underlying claim.

For example, an employee may have a good-faith but legally weak claim of workplace harassment. Even though her claim is weak, it would still be unlawful for the employer to take action against her based on the fact that she made the complaint. It is also possible for a non-protected employee to become "protected" by the retaliation laws – for example, a white male who complains about discrimination against minority women at his workplace.

(It is possible to terminate someone for making a bad-faith complaint or for handling a legitimate complaint in a completely unconstructive manner, but this type of termination is treacherous and should not be undertaken without thorough legal review.)

No. 5. They don't mediate. Many of us were skeptical of the EEOC's mediation program when it was introduced a few years ago. We did not believe that EEOC mediators would ever give employers a fair shake. For many of us who gave it a try nonetheless, a pleasant surprise awaited. In my experience, the mediators have been generally fair and savvy (see No. 8 above), and have facilitated economical resolutions for companies. Not every case is suitable for mediation, but more cases are mediation-worthy than an employer might think.

No. 4. They wait. Yes, I know that the EEOC is slow, too, but I’m talking about delay as an employer tactic, not delay caused by heavy workload or negligence. Delay is sometimes a legitimate strategy to reduce liability or achieve other goals. But it is generally not smart, even if legitimate, where an EEOC charge is concerned. Employers should realize that once an employee files a charge, the statute of limitations on the federal antidiscrimination claims stops running until the EEOC disposes of the case. Thus, there is certainly no statute of limitations reason for employers to be dilatory. And, even though the statute of limitations stops, the accrual of back pay and back benefits does not. So the more you drag your feet, the more money you may end up paying to the charging party. You also may develop a reputation for being a stonewaller.

No. 3. They prevaricate. This is, thankfully, another problem caused by only a few bad apples. (I have never had a client do this.) To the extent that employers provide non-coercive advance preparation for their employees before EEOC interviews, or obtain legal representation before responding to charges, this is all perfectly legitimate and more than fair. However, employers who try to improperly conceal witnesses or evidence, falsify documents, threaten potentially adverse witnesses with discipline or discharge (or blacklisting), lie to the EEOC, or engage in other improper activity should watch it – they are hurting no one but themselves.

No. 2. They're not appropriate. This should be no surprise to any employer who is being honest with itself: Employers do not always take the appropriate action in addressing discrimination issues and do not always take corrective action when problems arise. Mistakes are unavoidable, but if you get a charge and realize that indeed you had not handled the situation appropriately, begin working to resolve the matter. If you act quickly (see No. 4 above), you may be able to reinstate a wrongfully terminated employee, or resolve the charge with a nominal settlement. If you make this your normal practice when you find that you have done wrong, you will create an outstanding reputation with the EEOC, and they'll often be willing to give you the benefit of the doubt on the cases you are willing to fight.

No. 1. They don't calibrate. The number one complaint from EEOC regional attorneys is that employers often fail to proactively monitor their EEO compliance. This is easy to neglect with all the other responsibilities that companies have. But wise employers will do all that they can to monitor the demographics of employment activity, especially for jobs that seem to be "segregated" by race or sex; keep EEO and harassment policies up to date; have good processes in place for employees to complain if they believe that they have been treated unfairly; and provide effective management training on employee relations, discipline and discharge, discrimination, reasonable accommodation, retaliation, and harassment. For larger companies, it is also advisable to monitor legal actions filed against the company (including lawsuits and administrative charges), even if frivolous, because heavy activity may indicate serious morale or perception issues if not bona fide discrimination issues.

PS - This "calibration" is even more important in light of the Supreme Court's decision last week in Staub, in which it recognized employer liability on a "cat's paw" theory.

All that said, here are a few tips from a more “employer-friendly” point of view:

• Don't assume, just because the EEOC is suing (see No. 7), that you have done wrong. The EEOC isn't always right, either, and you can win an EEOC lawsuit – especially if they seem to be litigating only because you happen to be on the wrong end of one of the agency's "hot" causes.

• Although you should not underestimate the competence and professionalism of the EEOC, don't overestimate it, either. Especially when writing your Statement of Position, be sure that you fully and in plain language explain all relevant background information and your position. You will generally not go wrong by trying to make the investigator's job easy.

• Don't try to avoid liability by claiming that a termination for cause was a “job elimination.” My mentor has a great old story about trying an age discrimination case (he was representing the plaintiff) in which the employer claimed "job elimination." The only problem was, the plaintiff whose job was eliminated was the president of the company. Uh . . . yeah.

This trick has been tried many times, and the EEOC is onto it. If you fired someone for a good reason, have the courage to admit it. If the person was terminated partly for cause and partly for economic reasons, say that. You will have a much easier time defending yourself if you're straight-up.

• Don't think the EEOC is being adversarial every time it asks you for information. Often, when the EEOC asks for more information, it is 99 percent ready to throw out the charge (that is, to find in the company's favor) and just needs one small item from you to wrap the thing up. Thus, unless the request is truly unreasonable, comply politely. When in doubt, consult with counsel.

• Speaking of adversarial, generally don't be with the EEOC. Some investigators require an adversarial touch, but these are in the minority. Most will be much easier to deal with if you are courteous and pleasant with them. Even if you disagree with their position or don't intend to provide certain information they've requested, you can “just say no” respectfully.

• Last but not least, if you do not have an in-house employment lawyer, don't handle even a seemingly trivial charge without the help of outside counsel. Here are examples of some mistakes that can turn little charges into big disasters: Inadvertently admitting to violation of a non-EEO law, providing too much information that allows the Commission to go fishing for trouble, presenting "facts" that turn out to be untrue. And, of course, committing any of the above “Notorious Nine.”